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Sibanda v The State (Criminal Appeal No. 1 of 1984) [1984] BWCA 13 (22 May 1984)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 1 of 1984
In the matter of:
LOVEMORE SMUT SIBANDA Appellant vs.
THE STATE
Mr. M. Mothobi with him Mrs. D. Khaaa
for the Appellant
Mr. W. G. Manchwe for the State
JUDGMENT
CORAM: I. A. Maisels, JP
J. R. Dendy-Young, JA L. de van Winsen, JA
DENDY-YOUNG. JA:
The appellant was indicted in the High Court on two
counts. The first charge was of the murder of MRS. MARY WOOD
second contrary to section 207 of the Penal Code. The/count charged
the appellant with the robbery with violence contrary to
section 297 of the Penal Code. Initially the appellant
pleaded not guilty; but in the course of the trial changed his
plea to one of guilty on both counts. He was convicted as
charged on his pleas of guilty and sentenced. On the murder
charge he was sentenced to death. On the robbery charge he
was sentenced to 3 years imprisonment. Appellant appeals to
this Court on the death sentence only.
2
It is necessary to refer shortly to the course the trial took. At a certain point in the trial Counsel for the appellant; applied for an order referring the appellant for physchiatric examination as, according to Counsel, he was having difficulty in getting
instructions. The order was granted and appellant was kept under observation at the Lobatse Mental Hospital for a period of 3 weeks.
The report of the Superintendent of the hospital was that appellant was of sound mind and responsible for his actions at the time
of the offence and also was fit to stand trial. Uponthis evidence being placed before the Court, Counsel for appellant obtained an adjournment and at the resumption informed the Court that appellant wanted to change his plea to
one of guilty on both counts of the indictment. Both Counsel addressed the Court on the propriety of convicting appellant on a plea of guilty to murder. The Court ruled in favour of the legality of such a course by virtue of the provisions
of section 239 (1) of the Criminal Procedure and Evidence Act (Cap 08:02), as amended, subject to the agreed facts substantiating the charge.
The charges were then put to appellant again, and he pleaded unequivocally guilty to both counts. A summary of facts was then agreed by Counsel. They are as follows:-
"SUMMARY OF FACTS
1• The accused is Lovemore Smut Sibanda aged approximately 23 years.
2.
The accused is a former employee of the deceased person's family and resided with them until he lost employment around March 1983.
3.
On the 16th of May, 1983 the accused person went to
2.
3
house No. 2526 Extension 9, where the deceased resided.
4. The accused had hacksaw with him exhibited as exhibit 19 which he had the previous day borrowed from one Ozias Ncube.
. On arrival at house No. 2526 there was nobody.
6.
The accused used the hacksaw to cut one of the burglar proof bars and removed some window pane louvers. He then gained entry into the house through the window.
7.
The intention of the accused was to steal from the house.
8.
while the accused was still in the house the deceased arrived home.
9.
The accused stabbed the deceased with kitchen knives exhibited as 9 and 11 and inflicted the injuries as reflected in the Post mortem
report and the deceased died as a result of haemorrhage and shock due to such injuries.
The Post Mortem report is produced.
10.
Immediately after stabbing the deceased he stole various property as listed in Annexure B of the charge sheet.
11.
He loaded the property
in a wheelbarrow belonging to the deceased's husband
and conveyed them to house No. 5442 which was a short
distance from the deceased's place.
Accused's residence is house No. 5442. This was between 12 noon and 1 p.m.
12.
On the same day he took some of the property to Ozias Ncube for safekeeping.
13.
The following day he took the remaining property to his father's place in Tsholofelo.
14.
The accused was arrested by D, S. Supt. Mululwane and other Police Officers on the 18th May, 1983. He was found in house No. 2686 Extension 9 which was then vacant.
15.
The Police recovered all the stonen property.
16.
The accused stabbed the deceased with the intention to kill her.
12.
A
17. The accused was finally charged with the offence of murder and robbery as in the Indictment before the Court.
All stolen property produced and a list of all property prepared by the deceased's husband is also produced."
The post-mortem report revealed a sustained and brutal assault by appellant with two lar^e kitchen knives which were produced in Court for inspection. There were no less than 16 incised and stab wounds on the body including wounds to the neck, face and chest which had to result in the death of the deceased.
The summary of agreed facts was put to appellant and agreed to by him. The trial Court thereupon entered verdicts ot guilty on each count.
There were no previous convictions.
Defence Counsel thereupon addressed the Court on extenuating circumstances. The following colloquy then took place between the Judge and the appellant.
"Judge; Ask the accused if he wishes to say anything.
Accused; I have nothing to say except
perhaps to plead for mercy when judgment is being made.
Can you give any reason why I should be merciful to you,
I do not know how I can put it or answer it.
Anything else you want to say.
If sentence is passed against me my hair should not be removed, I am not touched on the head. Nothing else to say.'
5
The trial Judge then addressed the appellant in the following terms:-
"You have been convicted of murder which is the most serious offence in the Penal Code. You have deliberately taken the life of another human being and you did so in a very savage manner. She was a defenceless woman and you were in the process of carrying out a serious robbery. There was no need for you to kill this woman or even to attack her, but you acted in this manner even though it seems to be foreign to your character. I take account of the fact that you are 23 years of age and have no previous convictions. I take account of all the circumstances, but the purpose of the law is to protect people and their property, and the taking of human life is the most serious offence. Try as I might, I can find no extenuating cricumstances. Accordingly, I can pass the only sentence which ic merited by the offence. My sentence on the first count is that you shall hang by the neck until you are dead, may the Lord have mercy upon your soul.
On the second count, I sentence you to imprisonment for 3 years."
In noting an appeal against sentence of death the appellant said in a letter dated 17th January, 1984 to the
Registrar of this Court.
"My name is Lovemore Sibanda and I am a Zimbabwean by birth. I was born at Mpilo Hospital on the 23rd of November, 1967. I arrived in Botswan in Jan. 1983, and I was arrested on the 18th of May 1983 on a charge of murder.
I am appealing to the High Court asking for forgiveness and asking you to re-co^sider my case with a view to give me a more lenient sentence instead of the death sentence. I am your child and I am asking you to have mercy on my soul because I will never do such a thing again. I did not commit this crime intentionally. I should not have done such a thing, and I am asking you to realise that my actions that resulted in the death of the deceased were
only a reflection of my imaturity.
6
I am therefore asking you to commute the death sentence to any kind of a lengthy prison sentence. Please have mercy on me I am Just as good as your child my Lord.
I had come to Botswana to find employment so that
I could pay for my schoolfees and uniform and go back
to school, hence my crime and present position.
I am a first offender, I have never committed a crime even in Zimbabwe.
PLEASE SIR, HAVE rtERJY Oli lOUR LCSx SOW, LIKE MYSELF."
In this Court Counsel for appe llant submitted that the learned trial Judge had misdirected himself in not giving sufficient attention or weight to appellant's state of mind when committing the assault and in failing to find extenuation on the evidence. He argued that it could be inferred from the admitted facts that appellant had set out that day to steal from deceased's home and not to injure anyone; that he was a young man of 23 who, when surprised by the deceased in the act of stealing from the house, acted out of character and, judging from the violence and intensity of the assault on deceased must have gone beserk. Counsel urged that an inference that something must have happened to appellant's mind to cause him to react in such a violent manner,
could be drawn. Even if this aspect had not been adequately explored Counsel urged that such inference cannot be excluded. This inference would reduce the moral blameworthiness of the appellant for the purposes of extenuation.
Now, it must be conceded, I think, that the matter of appellant's mental state during the attack on deceased was left very much in the dark. It is indeed surprising and on
7
the face of it, unfortunate that appellant having pleaded
guilty to such a brutal murder did not in mitigation take the
Court into his confidence in regard to the mental state and
motivation. He had nothing to lose by taking such a course.
As the matter stands on the record, we know virtually
nothing about appellants personality, his motive, his
mentality, his past history, experience and upbringing.
(See State v Caeser 1977 (2) S.A. 548 (A) at 353 C - F)
In the State v Lehnberg 1975 (4) S.A. 553 (A) at 560 H.
Rumpff CJ recites a passage from Voet 48:19:7 (Gane's
Translation) which I think is apposite here:
"But sometimes it has not been considered as a crime in minors when the same act, if committed by majors, would have been liable
to correction as has been more fully approved in our title in Minors below the age of twenty-five years. In the same way also it has not been thought unfair that pity for youth should sometimes induce a Judge to give a moderate punishment even in somewhat heinous offences, especially when circumstances reasonably suggest that some allowance should be made for the hazards of youth."
In the present case there was no or very little attempt by
Defence Counsel at the trial to bring the case within the "hazards of youth" or otherwise recognised extenuating circumstances.
But in the last resort, in my view, the fault lay with the appellant. The onus was on the Defence to provide the trial Couit with evidence from which extenuating circumstances might be inferred. Unless of course such evidence emerged on the case for the State. Appellant did not do so and his motivation remains unexplained.
8
In this Court I reminded Counsel for the appellant that if such evidence existed, an application supported by affidavit could be made
to this Court for leave to place the evidence before it. No application was aade. Counsel for the appellant appeared to prefer to stand on the record as it is.
On that record I can find no sufficient material upon which infer any moral excuse for what on the face of it was a deliberate and brutal killing of a defenceless woman.
This case brings, out strikingly the need for great care in employing the power conferred by section 239 (1) of the Criminal Procedure and Evidence Act (Cap 08:02), as amended, to convict an accused on a plea of guilty to the crime of murder.
I would dismiss the appeal.
GIVEN at the Court of Appeal, Lobatse, this 22nd day of May, 1984.
J. R. DENDY-YOUNG Judge of Appeal
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